COMMONWEALTH PENNSYLVANIA v. NICK FOLINO (12/18/81)

No. 643 APRIL TERM, 1977, No. 644 APRIL TERM, 1977, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at Nos. CC7607095A and CC7607096A.

Cavanaugh, Hoffman and Van der Voort, JJ.

Author: Van Der Voort

[ 293 Pa. Super. Page 350]

Appellants are co-defendants. Appellant Folino, by Information No. CC7607095A was charged with Criminal Conspiracy, Simple Assault, Rape, and Corruption of Minors. Appellant Hopson, by Information No. CC7607096A was charged with Criminal Conspiracy, Simple Assault, Kidnapping, two (2) counts of Rape, and Corruption of Minors. Appellants proceeded to trial jointly. At the first trial, a mistrial was granted on motion of defense counsel. Appellants again proceeded jointly to trial for a second time. A jury found Folino guilty of rape and corruption of minors; he was acquitted of the other charges. Hopson was adjudged guilty of simple assault, one (1) count of rape, and corruption of minors; he was acquitted of the other charges. Post verdict motions were denied. Both appellants were sentenced to a term of five (5) to ten (10) years imprisonment on the rape convictions, sentences were suspended on the other convictions. Both appellants have appealed to this Court; their appeals have been consolidated for our review.

A brief summary of the factual history of this case is helpful. Virginia, age fourteen (14) and Andrea, age fifteen (15) ran away from their home in McKeesport. The two girls made their way to Point Park in Pittsburgh, where they were approached by appellant Folino. After buying the girls something to eat, and after Folino made several phone calls, the three walked to the North Side. On the North Side, the girls were forced into a car driven by Hopson. A third male was picked up and the girls were driven to a house where they were raped. The group then drove to the downtown area where Andrea was able to escape. Virginia was taken to another apartment by the two appellants, where she remained until escaping five days later.

A separate brief has been filed by counsel for each appellant. These briefs each raise four arguments, each argument will be discussed jointly in part A, as the briefs are basically identical for review purposes. Additionally, appellant Hopson has filed a brief pro se. While the Commonwealth

[ 293 Pa. Super. Page 351]

does not address itself to the pro se brief, we must nonetheless review its contents. We shall first consider the attorney filed briefs and then discuss the pro se arguments in part B.

A

I. Did the court err in permitting Andrea to be removed from the witness stand for rehabilitation by a rape crisis center representative?

During the direct examination of Andrea, the witness appeared to be having difficulty in relating the incident to the court and jury. The trial judge asked the prosecuting attorney whether he wished to talk with the witness before continuing. The assistant district attorney conferred with the witness for about four minutes*fn1 outside of the court room. During this four minute interval a rape crisis center counselor talked with the witness. The witness then took the stand and continued with her testimony. Appellant claims this procedure was improper.

We need not discuss the merits of such contention since appellant has not properly preserved it for review. Neither appellant objected at that time to the court's excusing the witness for those four minutes. Counsel for appellant Folino completed his cross examination without ever questioning the four minute conference. Counsel for Hopson, after the co-defendant had concluded his cross examination, and after a brief recess then moved for a mistrial, which the court denied. Counsel for Hopson then went on to cross examine the witness. Cross examination revealed the witness had talked with the volunteer from the Rape Crisis Center. Appellant Hopson did not renew his motion for a mistrial.

Case law in this jurisdiction has consistently held that the cornerstone of our waiver doctrine is that issues below not raised in a timely manner are foreclosed for purposes of appellate review. Commonwealth v. Pritchett, 468 Pa. 10,

Neither appellant objected to the Commonwealth's midexamination conference with the victim until well after such conference. Nor can the appellants claim that their objection goes to the involvement of the Rape Crisis Center. No objection was made when appellants became aware that the witness may have conversed with someone other than the district attorney. Accordingly, we may not review this claim as appellants have failed to preserve it with a timely objection.

II. Did the court become an advocate for the Commonwealth by examining a prosecution witness and refusing to permit defense counsel to further cross examine such witness?

After the Commonwealth and both appellants had completed their questioning of Andrea (including re-direct and re-cross), the trial judge proceeded to ask the witness several questions. The court inquired as to whether the witness was afraid to testify. The court then succinctly questioned the witness concerning the criminal incident.

Q As I understand your statement, you say you have been -- you had sexual intercourse with both of these Defendants on that day?

A Yes.

Q And it was against ...

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